causes of action will usually be against a governmental entity, and therefore, recovery will be limited by either the Local Government Tort Claims Act,27 or the Maryland Tort Claims Act.28 Negligence suits against governmental entities for negligent maintenance and control of the roadway are not barred by the doctrine of sovereign immunity, but you need to make sure that you timely and appropriately comply with any and all notice requirements to the correct entities.29 On occasion, the responsible govern-
mental entity will have contracted with a private party such as a construction company, roadway safety consultant and/or other subcontractor for the de- sign of the roadway and/or maintenance of the roadway. Any such private entity that negligently contributed to the cause
27
MD Code, Courts and Judicial Proceed- ings, § 5-303 “…the liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions…”
28
MD Code, State Government, § 12-104 “The liability of the State and its units may not exceed $200,000 to a single claimant for injuries arising from a single incident or occurrence.”
29
See Montgomery County v. Voorhees, 86 Md. App. 294, 586 A.2d 769 (Md. App. 1991), Godwin v. County Commissioners, 256 Md 326. at 335, 260 A.2d 295 (Md. 1970); See also, Tadjer v. Montgomery County, 300 Md. 539, 548, 479 A.2d 1321 (1984) (“The duty to maintain streets and highways in a reasonably safe condition is a major exception to the immunity from suit in Maryland of counties and munici- palities.”); Cox v. Anne Arundel County, 181 Md. 428, 431, 31 A.2d 179 (1943) (when maintaining public highways, a munici- pality is acting in its corporate capacity, and is liable for suit for its negligence); City of Baltimore v. Seidel, 44 Md. App. 465, 476, 409 A.2d 747, cert. denied, 287 Md. 750 (1980) (holding that the placing of warning signs on public highways is a proprietary or corporate function and, consequently, the City was not immune from suit). See also 45 A.L.R. 3d 875 Li- ability of Governmental Entity Or Public Officer For Personal Injury Or Damages Arising Out of Vehicular Accident Due to Negligent or Defective Design of a High- way.
22
of the crash should be included as a De- fendant in a catastrophic-injury case. It is often difficult to determine whether a private subcontractor is involved prior to filing suit against the governmental entity. Therefore, it is important to file suit well in advance of the statute of limitations so that additional defendants can be added if necessary. Proving a negligent roadway design/
negligent roadway maintenance case usually requires expert testimony. If the case involves traffic-control devices, roadway signs, warnings, roadway mark- ings, or traffic signals, the expert should rely upon The Manual on Uniform Traffic Control Devices For Streets and Highways (“MUTCD”) which sets forth a national standard for all traffic-control devices installed on any street or highway.30 The standards set forth in the MUTCD apply to both governmental entities and private entities such as construction companies and sub-contractors.
Medical Negligence Claim for Subsequent Medical Treatment
If your client’s original injuries from
the crash are made worse by improper medical treatment, then a medical-neg- ligence claim should be considered. 31
As
a general rule, insurance policies cover- ing doctors and hospitals for medical negligence are larger than the typical individual-automobile policy. However,
30
The Manual on Uniform Traffic Control Devices For Streets and Highways, 2003 Edition has been approved by the Federal Highway Administrator as the National Standard in accordance with 23 USC 109(d), 114 (a), 217, 315, and 402(a), 23 CFR 655 and 49 CFR 1.48(b)(8), 1.48(b) (33), and 1.48 (c)(2).
31
See Morgan v. Cohen, 309 Md. 304, 310-311, 523 A.2d 1003, 1006 (Md.,1987) (recognizing that “[w]hen a physician negligently treats the injuries, he also be- comes liable to the plaintiff, but only for the additional harm caused by his negli- gence; and that the negligent treatment is a subsequent tort for which the original tortfeasor is jointly liable.); Restatement (Second) of Torts § 433A comment c (1964); W. Prosser & W. Keeton, The Law of Torts § 52, at 352 (5th ed. 1984).
Trial Reporter
the negligent medical provider will only be responsible for the aggravation of the injuries from the original automobile accident caused by the medical error. In practice, suit should be brought against both the original tortfeasor who caused the automobile accident, and against the negligent medical provider(s). If a settlement or judgment is obtained against only the motorist tortfeasor, and not against the physician tortfeasor, then the claim against the physician could be mistakenly extinguished.32
care should be taken in entering into a partial settlement with only the original negligent motorist tortfeasor. A general release, executed in the settlement of a damage claim against the operator of a motor vehicle whose negligence caused an injury, does not discharge, as a mat- ter of law, a physician who subsequently treats the injury, but rather, the release of the physician depends upon the intent of the parties.33
To avoid confusion, the
release should clearly and specifically in- dicate that the cause of action against the medical provider is not being released and is therefore preserved.34
Tavern Liability/ Dram Shop Liability
Across the United States, approxi- mately 17,000 people are killed yearly in
32
Underwood-Gary v. Matthews, 366 Md. 660, 785 A.2d 660 (Md. 2001) (holding that a plaintiff ’s claim against a subse- quent treating physician was barred by a satisfied judgment against the original tortfeasor/motorist and explaining that a plaintiff is entitled to but one compensa- tion for his or her loss, and full satisfaction of a plaintiff ’s claim prevents it from being further pursued).
33
Morgan v. Cohen, 309 Md. 304, 523 A.2d 1003 (Md. 1987); See also 19 MD-ENC RELEASE § 7.
34
Remember that if you file suit against a negligent health care provider in Mary- land, any such suit must be initiated in the Health Claims Alternative Dispute Office of Maryland (“HCA”), and the Courts & Judicial Proceedings sections followed. Once properly waiving out of HCA, you can file suit in Circuit Court and then move to consolidate the malpractice com- plaint with the automobile complaint.
Summer 2008
Therefore,
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